Getting a firmer grip on waste controls

Defra has launched a second consultation on proposed changes to the controls on the handling, transfer and transport of waste. The consultation, which closes this month, is in two parts.

The first is aimed at modernising duty of care, and waste carrier and broker registration regimes. The consultation is proposing to introduce one new statutory instrument to replace several pieces of waste legislation. These include the Controlled Waste (Regist-ration of Carriers and Seizure of Vehicles) Regulations 1991, and the Environmental Protection (Duty of Care) Regulations 1991.

The second includes proposals for introducing new powers for the Environment Agency (EA) and local authorities (LAs), allowing them to instantly seize vehicles that have been involved in, or are suspected of being involved in, waste offences. These changes are aimed at tackling the weaknesses of the waste regime, and to improve environmental protection and reduce waste crime. In this regard, Defra has published draft regulations with a view to them coming into force next April.

Currently, under UK legislation, waste producers - except those producing building and construction waste - are not required to register as waste carriers. But, following a recent European Court of Justice decision on the transport and collection of waste, the Government will be required to amend legislation. It is proposing that the only person who would be exempt from the requirement to register as a carrier of waste would be one who does not normally and regularly transport waste in the course of business.

Revised guidance will be issued in early 2009 on the definition of a professional carrier, which will include those who in the course of their activities, normally and regularly transport waste - whether the waste is produced by them or others. This will mean that those who produce and transport their own waste, as a normal and regular part of their business, will be required to register as a waste carrier.

Although not specifically exempted in the proposed regulations, LAs will be automatically authorised to carry waste, as they have statutory duties to collect municipal waste. But this would only apply to councils that deliver municipal waste collection services in-house. It would not apply to waste carriers who were contracted to deliver waste collection services on behalf of LAs.

Why size mattersThe current registration regime is based on a one-size-fits-all system, and so the same level of control applies, regardless of the type or quantity of waste handled. Defra is proposing to create a two-tier system for registering waste carriers, based on the risk they pose to the environment. Low-risk carriers - such as LAs and charities - will have to apply for a registered exemption from permitting only once, and pay a small charge. Such applications will not normally be assessed, and will not be subject to annual renewal.

Waste brokers, traders and high-risk carriers - such as those that carry the waste of others, or producers of construction and demolition waste that transport it themselves - will have to pay annual renewal fees. The EA will also assess their application, verifying the applicant's identity and address. Annual updates will require assessment and looking at previous convictions.

Defra expects that the checks carried out by the EA when registering high-risk carriers will reduce the likelihood of waste carriers obtaining licences using false information, and help reduce fly-tipping incidents. The EA has struggled to revoke waste carrier registrations in the past.

Under the proposed regime, the EA will be able to revoke licences if a company's criminal record "demonstrates a failure of infrastructure, procedures or other management controls", if it "has been unwilling to change [its] behaviour" following conviction, or if the EA is unable to conclude that a post-conviction plan "will prevent future reckless behaviour". But, to give the EA flexibility, this would not form part of any legislation. It would, instead, be left to guidance due to be issued for consultation later this year. The consultation seeks views on proposals for new legislation aimed at reducing fly-tipping and rogue operators.

Greater powersThis will be through strengthening the powers of the enforcement authorities available under the Clean Neighbour-hoods & Environment Act in relation to vehicles suspected of involvement in fly-tipping.

Defra is proposing that LAs and the EA are able to keep vehicles for 14 days to gather the evidence needed to take prosecutions forward. It also seeks views on changes to the procedure for tracing the vehicle's registered keeper, and whether the authorities should be able to claim the costs involved in storing and seizing vehicles - even if a prosecution is not pursued.

Paul Collins is a solicitor in the planning and environment team at Pinsent Masons